Tuesday, June 23, 2009

Supreme Court: Another Look at Miranda

MIranda v. Arizona, 384 U.S. 436 (1966), is back in the United States Supreme Court.

In State v. Powell, 998 So.2d 531 (2008), the Supreme Court of Florida ruled that Miranda warnings which do not expressly state that a defendant has the right to have an attorney present during an interrogation violate the Fifth Amendment, and any statements made by the defendant must be suppressed.

Yesterday, the United States Supreme Court granted a writ of certiorari to review the Florida ruling. In Powell the defendant was told the following:

"You have the right to remain silent. If you give up the right to remain silent, anything you say can be used against you in court. You have the right to talk to a lawyer before answering any of our questions. If you cannot afford to hire a lawyer, one will be appointed for you without cost and before any questioning. You have the right to use any of these rights at any time you want during this interview."

In the view of the Florida Supreme Court the statement, "You have the right to talk to a lawyer before answering any of our questions," does not convey the information required by Miranda: that the defendant has the right to have counsel present during the interrogation. Nor, said the court, does the statement, "You have the right to use any of these rights at any time you want during this interview," clarify the matter because the right he was advised he could use was the right to speak to a lawyer before answering questions.

Federal courts of appeal have divided on whether a defendant must expressly be told he has the right to the presence of counsel during the interrogation.

The case will be argued in the 2009 Term of the Court which begins in October.

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ABOUT THE AUTHOR

Norman A. Olch, one of New York's leading appellate lawyers, has successfully argued numerous civil and criminal cases in the state and federal courts. From 2003 to 2006 he was Chair of the Appellate Courts Committee of the New York State Bar Association, and he sits on the Executive Committee of the American Bar Association's Council of Appellate Lawyers. His peers have selected him a New York "Super Lawyer" for appeals in 2006, 2007, 2008, 2009, 2010, 2011, and 2012. He is co-author of the New York State chapter in the American Bar Association's 2-volume Appellate Practice Compendium (2012)which covers appellate practice in the United States Supreme Court, in all of the federal courts of appeal, and in each of the fifty states.